Citation Nr: 0502374
Decision Date: 02/02/05 Archive Date: 02/15/05
DOCKET NO. 03-00 045 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for tinnitus.
2. Entitlement to service connection for right ear hearing
loss.
3. Entitlement to service connection for migraine headaches.
4. Entitlement to service connection for asbestosis.
5. Entitlement to service connection for hypertension.
6. Entitlement to service connection for impotence.
7. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
8. Entitlement to a total disability rating based on
individual unemployability (TDIU) due to service-connected
disabilities.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant, Appellant's Spouse
ATTORNEY FOR THE BOARD
K. L. Wallin, Associate Counsel
INTRODUCTION
The appellant served on active duty from September 1967 to
April 1970.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a May 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois, which denied the benefits sought on
appeal.
The appellant presented testimony before the undersigned
Acting Veterans Law Judge in November 2004. The transcript
has been obtained and associated with the claims folder.
During the hearing, the appellant raised claims of
entitlement to service connection for skin rashes and
residuals of an appendectomy. These claims were denied by
the RO in a May 2002 rating decision. While the appellant
filed a notice of disagreement (NOD) with respect to these
issues, he did not file a substantive appeal. (See VA Form 9
dated December 2002). Therefore, the denials are final.
38 C.F.R. § 20.302(b).
Because the Board does not have jurisdiction over these
issues, the appellant's claims of entitlement to service
connection for skin rashes and residuals of an appendectomy
based on the submission of new and material evidence are
hereby REFERRED to the RO for appropriate action.
Although the issues of entitlement to service connection for
impotence, hypertension, PTSD, and entitlement to TDIU have
not been certified for appeal, in August 2004, the veteran
filed a NOD to the July 2004 rating decision, which denied
the aforementioned benefits. To date, the RO has not issued
a Statement of the Case (SOC) regarding these issues.
Accordingly, the Board is required to remand these issues to
the RO for issuance of a SOC. See Manlincon v. West, 12 Vet.
App. 238 (1999).
The appeals relative to service connection for tinnitus,
right ear hearing loss, and migraine headaches are ready for
appellate review. The appeals relative to service connection
for asbestosis, hypertension, impotence, and PTSD, as well as
entitlement to TDIU, are remanded to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the appellant if further action is required on his part.
FINDINGS OF FACT
1. The appellant is not a veteran of combat.
1. The appellant did not incur tinnitus due to any incident
of active military service.
2. The appellant did not incur right ear hearing loss due to
any incident of active military service.
3. The appellant did not incur migraine headaches due to any
incident of active military service.
CONCLUSIONS OF LAW
1. The criteria for the establishment of service connection
for tinnitus are not
met. 38 U.S.C.A. §§ 1110, 1131 (West 2002).
2. The criteria for the establishment of service connection
for right ear hearing loss are not met. 38 U.S.C.A. §§ 1110,
1131 (West 2002).
3. The criteria for the establishment of service connection
for migraine headaches are not met. 38 U.S.C.A. §§ 1110,
1131 (West 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matter: VA's Duty to Notify and Assist the
Claimant
The appellant contends that he incurred tinnitus, right ear
hearing loss, and migraine headaches while serving on active
military duty from September 1967 to April 1970.
Prior to proceeding with an examination of the merits of the
claims, the Board must first determine whether the appellant
has been apprised of the law and regulations applicable to
these matters; the evidence that would be necessary to
substantiate the claims; and whether the claims have been
fully developed in accordance with the Veterans Claims
Assistance Act (VCAA) and other applicable law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).
The VCAA provides that VA shall apprise the claimant of what
evidence would substantiate the claim for benefits and
further allocate the responsibility for obtaining such
evidence. The VCAA further provides that VA will make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate a claim for a benefit under a law
administered by the Secretary, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. In part, the VCAA specifically
provides that VA is required to make reasonable efforts to
obtain relevant governmental and private records that the
claimant adequately identifies to VA and authorizes VA to
obtain. The VCAA further provides that the assistance
provided by the Secretary shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary, as further defined by
statute, to make a decision on the claim. 38 U.S.C.A.
§ 5103A.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), it was in
part held that a VCAA notice, as required by 38 U.S.C. §
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision (i.e.,
that of the RO) on a claim for VA benefits. In Pelegrini, it
was also observed that VA must (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claims. This new "fourth element" of
the notice requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1). It was also held in Quartuccio v. Principi,
16 Vet. App. 183 (2002) that VA must strictly comply with all
relevant provisions of the VCAA.
In the instant case, a substantially complete application was
received in September 2001. In November 2001, the RO
provided specific notice to the claimant regarding what
information and evidence was needed to substantiate the
claims; the allocation of responsibility for obtaining such
evidence, as well as advising the appellant to submit any
evidence in his possession pertaining to the claims.
Thereafter, in a rating decision dated in May 2002, the
claims were denied.
As the VCAA notice in this case was provided to the appellant
prior to the initial RO adjudication denying the claims, the
timing of the notice complies with the express requirements
of the law as found by the Court in Pelegrini.
In Paralyzed Veterans of America v. Secretary of Veterans
Affairs, (PVA), 345 F.2d 1334 (Fed. Cir. 2003), the United
States Court of Appeals for the Federal Circuit (CAFC)
invalidated the 30-day response period contained in 38 C.F.R.
§ 3.159(b)(1) as inconsistent with 38 U.S.C. § 5103(b)(1).
The CAFC concluded that the 30-day period provided in
§ 3.159(b)(1) to respond to a VCAA duty to notify is
misleading and detrimental to claimants whose claims are
prematurely denied short of the statutory one-year period
provided for response. However, more than three years have
passed since the November 2001 letter was sent to the veteran
by the RO.
Accordingly, the Board concludes that the veteran has been
provided statutorily sufficient time and opportunity to
submit evidence in support of his claims. Also, it must be
noted that the President signed a technical amendment to
clarify that the time limitations for submitting evidence in
the VCAA do not prevent VA from issuing a decision before
expiration of that time period. Veterans Benefits Act of
2003, Pub. L. No. 108-183, § 701, 117 Stat. 2651, ___ (Dec.
16, 2003) (to be codified at 38 U.S.C. § ____).
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error). In this case, because
each of the four content requirements of a VCAA notice has
been fully satisfied, any error in not providing a single
notice to the appellant covering all content requirements is
harmless error.
The Board finds that reasonable efforts have been made to
assist the appellant in obtaining evidence necessary to
substantiate the claims that have been addressed in this
decision. His service medical records, private medical
records, and VA outpatient treatment records are included in
the file. While the appellant contends that his service
medical records are incomplete, there is no evidence of
record to support his contention. The appellant's enlistment
and separation examination reports have been associated with
the claims folder, as well as service medical records dated
between 1967 and 1970. Further, a November 2001 request for
information reveals that the appellant's complete medical and
dental records were mailed to the RO in February 2002. In
compliance with its duty to assist the appellant in the
development of his claims, VA afforded the appellant
clarifying medical examinations in 2002 and 2004.
In sum, the Board finds that VA has done everything
reasonably possible to assist the appellant. In the
circumstances of this case, additional efforts to assist the
appellant in accordance with the VCAA would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
inform and assist the appellant at every stage of this case.
Given the development undertaken by the RO and the fact that
the appellant has pointed to no other evidence, which has not
been obtained, the Board finds that the record is ready for
appellate review.
The Merits of the Claim
The appellant contends that he incurred tinnitus, right ear
hearing loss, and a headache disorder as a result of active
military service. Having carefully considered the
appellant's claims in light of the record and the applicable
law, the Board is of the opinion that the preponderance of
the evidence is against the claims and the appeals as to
these issues will be denied.
The law provides that service connection may be granted for
disability or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 1131. The resolution
of this issue must be considered on the basis of the places,
types and circumstances of his service as shown by service
records, the official history of each organization in which
the claimant served, his medical records and all pertinent
medical and lay evidence. Determinations relative to service
connection will be based on review of the entire evidence of
record. 38 C.F.R. § 3.303(a).
As a general matter, service connection for a disability on
the basis of the merits of such claim is focused upon (1) the
existence of a current disability; (2) the existence of the
disease or injury in service, and; (3) a relationship or
nexus between the current disability and any injury or
disease during service. Pond v. West, 12 Vet. App. 341, 346
(1999); Rose v. West, 11 Vet. App. 169, 171 (1998).
With regard to the second prong of the Pond/Rose inquiry, the
Board has considered potential application of the provisions
of 38 U.S.C.A § 1154(b), which would in appropriate
circumstances relieve the appellant of providing evidence of
the existence of a disease or injury in service . See 38
U.S.C.A § 1154(b) (Providing in substance that in the case
of veterans of combat, VA shall accept as sufficient proof of
service-connection of any disease or injury alleged to have
been incurred in or aggravated by such service, satisfactory
lay or other evidence of service incurrence or aggravation of
such injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation in such service, and, to that end, shall resolve
every reasonable doubt in favor of the veteran. Service-
connection of such injury or disease may be rebutted by clear
and convincing evidence to the contrary); see 38 C.F.R. §
3.304(d).
The record does not support a finding that the appellant is a
veteran of combat. First, his service medical and personnel
records indicate that his military occupational speciality
was consistently in the administrative field. Although he
was assigned to an engineer battalion, his assignment was
that of company clerk, record clerk and transient non-
commissioned officer - all administrative posts.
Additionally, the appellant is not in receipt of any awards
or commendations that would indicate combat service.
Finally, as to the claims at issue, as will be noted below,
his service medical records directly contradict his current
assertions as to in-service incurrence. Stated
alternatively, this is not a matter where service medical
records are unavailable or are silent as to the claimed
disorders. Thus, the provisions of 38 U.S.C.A § 1154(b) are
not for application in this matter.
Tinnitus and Right Ear Hearing Loss: The appellant argues
that he sustained the disorders as a result of acoustic
trauma in Vietnam and/or the removal of impacted wax in his
ear performed during service.
The appellant's service medical records do not support his
contention as to either disability. Firstly, contrary to the
appellant's present reports, they are wholly devoid of any
mention of relevant treatment, symptoms or complaints of
tinnitus or hearing loss. While the appellant claims that he
was treated in service for impacted cerumen (i.e., ear wax),
his service medical records do not support his assertion. As
noted above, while the appellant argues that his service
medical records are incomplete, there is no evidence of
record to support this assertion and the National Personnel
Records Center has certified that all of the appellant's
service medical records have been forwarded to VA.
To the extent that his service medical records mention any
ear pathology, they indicate that upon separation from
service, the appellant denied having ear "trouble" in his
separation physical examination questionnaire, and no hearing
abnormalities were noted during the course of his separation
physical examination. Indeed, the appellant reported that
he was in "good" health, and his "PULHES" physical profile
at the time he was separated from active service in April
1970 indicated that he was in excellent physical condition.
His PULHES profile was:
Physical
Capacity
and
Stamina
Upper
Extremit
ies
Lower
Extremit
ies
Hearing
and Ears
Eyes
Psychiat
ric
Conditio
n
1
1
1
1
1
1
See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992);
(Observing that the "PULHES" profile reflects the overall
physical and psychiatric condition of the veteran on a scale
of 1 (high level of fitness) to 4 (a medical condition or
physical defect which is below the level of medical fitness
for retention in the military service.
The first complaints of tinnitus were noted upon VA
audiological examination in April 2002, some 32 years after
the appellant's separation from service. The examiner noted
that the appellant's service medical records were devoid of
ear disease while in Vietnam. The examiner further noted a
1975 post-service water skiing accident, which perforated the
appellant's eardrum and resulted in surgery for repair of a
perforated right tympanic membrane. The appellant complained
of right-sided periodic tinnitus. The appellant stated that
it had a minor impact on his daily life. The appellant was
diagnosed with chronic right middle ear disease most likely
related to an injury in 1975 as a civilian.
VA outpatient treatment records dated in July 2002 reveal the
veteran denied tinnitus. There are no further complaints of
tinnitus contained in the record until the appellant
presented testimony in November 2004.
Indeed, there is some question as to the existence of a
current diagnosis of tinnitus; however, affording the
appellant all reasonable doubt and assuming the presence of a
current disability, there is no evidence of record to
substantiate the critical second and third components of the
Pond/Rose inquiry, as enumerated above. The service medical
and personnel records do not support a finding of any
incident in service, either acoustic trauma or the removal of
impacted wax. Moreover, not only is there no evidence of a
nexus between any current diagnosis of tinnitus and the
appellant's service, but the April 2002 examiner opined that
right middle ear disease is in fact related to a civilian
water skiing accident.
As to right ear hearing loss, the appellant argues that the
disorder is the result of acoustic trauma in Vietnam and a
perforated tympanic membrane sustained during service.
While the appellant testified in November 2004 that he has
had hearing problems since service, the first recorded
complaints with respect to the appellant's right ear was in
1975 - five years after his discharge from active service.
Critically, medical records reveal the appellant had a
tympanoplasty in March 1975 after he perforated his right
tympanic membrane in a water skiing accident.
Though the record contains multiple complaints regarding the
appellant's right ear and various diagnoses, to include
chronic otomastoiditis, otitis media, and a perforated
tympanic membrane, upon VA audiological examination in April
2002, chronic right middle ear disease was found to be most
likely related to a 1975 water skiing accident the appellant
was involved in as a civilian.
There is thus no evidence of record to substantiate the
critical second and third components of the Pond/Rose
inquiry, as enumerated above. The service medical and
personnel records do not support a finding of any incident in
service, either acoustic trauma or a perforated tympanic
membrane. Moreover, not only is there no evidence of a nexus
between any current diagnosis right ear hearing loss and the
appellant's service, but as noted above, the April 2002
examiner opined that right middle ear disease was in fact
related to a civilian water skiing accident.
While both the appellant and his spouse testified before the
undersigned that hearing loss and tinnitus were present since
the appellant's separation from active service, given that
the appellant's account of in-service treatment is not
substantiated; his denial of such symptoms upon his
separation from service; an intervening right ear trauma
several years after service, and competent medical evidence
linking the appellant's ear symptoms to the post-service
event, the preponderance of the evidence is clearly against
the claim and the appeal as to both issues is denied.
Migraine Headaches: The appellant argues that his headaches
began after an infection, which resulted from an appendectomy
performed in service.
The appellant's service medical records reveal the
development of an abscess after an appendectomy was
performed. However, the appellant was discharged to light
duty for three weeks and there were no resulting complaints -
in particular, there is no evidence either before or after
the appendectomy indicating that the appellant complained of
headaches of any kind. Further, there were no headaches
noted upon the appellant's April 1970 separation examination.
At that time, the appellant specifically denied then having,
or ever having had, "frequent" or "severe" headaches -
this is in direct contradiction to his testimony at the
November 2004 videoconference hearing.
While VA outpatient and private medical records contain
diagnoses of migraine headaches, there were no opinions
relating any current diagnosis to an appendectomy performed
in service and/or any incident of service.
Upon VA neurology examination in May 2002, the appellant
relayed a history of headaches since 1970. No cognitive
deficits were noted after neurological examination. Sensory
and motor examinations were also normal. The appellant was
diagnosed with migraine headaches. However, there was no
indication that migraine headaches were related to the
appellant's active duty service.
Thus, there is no evidence of record to substantiate the
critical second and third components of the Pond/Rose
inquiry, as enumerated above. The service medical and
personnel records do not support a finding of any incident in
service, to include migraine headaches resulting from an
appendectomy. Further, there is no evidence of a nexus
between any current diagnosis of migraine headaches and the
appellant's service.
In this circumstance, there is no duty on the part of VA to
provide an additional medical examination, because as in
Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the
appellant has been advised of the need to submit competent
medical evidence indicating that he has the disorders in
question, and further substantiating evidence suggestive of
a linkage between his active service and the current
disorders, if shown. The appellant has not done so, and no
evidence thus supportive has otherwise been obtained. Here,
as in Wells, the record in its whole, after due notification,
advisement, and assistance to the appellant under the VCAA,
does not contain competent evidence to suggest that the
disorders are related to the appellant's military service.
There is no competent evidence that "the disability or
symptoms may be associated with the claimant's active
military . . . service." 38 U.S.C.A § 5103A(d); cf. Charles
v. Principi, 16 Vet. App. 370 (2002) (Holding that under 38
U.S.C.A § 5103A(d)(2), VA was to provide a medical
examination as "necessary to make a decision on a claim,
where the evidence of record, taking into consideration all
information and lay or medical evidence, [including
statements of the claimant]," and where, the claimant had
been diagnosed to have tinnitus, and had proffered competent
lay evidence that he had had continuous symptoms of the
disorder [i.e., ringing in the ears] since his discharge.
Because there was evidence of record satisfying two of the
requirements of the statute, i.e., competent evidence of a
current disability and evidence indicating an association
between the appellant's disability and his active service,
but there was not of record, as relied upon in part by the
Board in denying his claim, competent medical evidence
addressing whether there is a nexus between his tinnitus and
his active service, VA was to provide the claimant with a
medical "nexus" examination).
Based on the foregoing, the claim is denied.
ORDER
Service connection for tinnitus is denied.
Service connection for right ear hearing loss is denied.
Service connection for migraine headaches is denied.
REMAND
After a careful review of all evidence of record, the Board
has determined that the appellant's claim of service
connection for asbestosis must be remanded for compliance
with applicable law relative to VA's duty to notify the
appellant of what evidence would substantiate his claim, as
well as for further development of the evidence. Although
the Board has not reviewed the claim with a view towards
ascertaining the merits of the appeal, the Board has
identified certain matters, which must be resolved, prior to
adjudication of this matter.
The appellant argues that he developed asbestosis as a result
of exposure to asbestos in military jets and while building
compounds in Vietnam. As noted above, the appellant was
advised as early as November 2001 that, in order to obtain
service connection for a claimed disorder, it was his
predicate obligation to submit evidence of a current
disorder, and competent evidence of a linkage between the
disorder and some incident of military service. After
several such advisements by letter, and via the rating
decisions and issued statements of the case, the appellant
advised VA in January 2004 that he had no further evidence to
submit.
However, during the November 2004 videoconference hearing,
the appellant testified that he was diagnosed with asbestosis
a physician identified as Dr. K., who resides in Florida.
Notwithstanding the numerous earlier advisements of record,
the appellant appears to have not notified VA of Dr. K.'s
opinion until that time.
Given these circumstances, it is understandable that VA has
not obtained Dr. K's records.
In order to satisfy the duty to assist, VA is obligated to
undertake reasonable efforts to obtain relevant records not
in the custody of a Federal department or agency, to include
records from private medical care providers. 38 C.F.R.
§ 3.159(c)(1). Such reasonable efforts will generally
consist of an initial request for the records, and if the
records are not received, at least one follow-up request. Id.
However, it is also well-established law that if a claimant
wishes assistance, he cannot passively wait for it in
circumstances where he should have information that is
essential in obtaining the putative evidence. Wamhoff v.
Brown, 8 Vet. App. 517 (1996); Wood v. Derwinski, 1 Vet. App.
190, reconsidered, 1 Vet. App. 406 (1991).
Further, under the VCAA, a claimant for VA benefits has the
responsibility to present and support the claim. 38 U.S.C.A.
§ 5107(a).
Upon remand attempts should be made to obtain records from
Dr. K. However, the appellant is advised that in this remand
directive, he is to provide the RO with his complete
cooperation towards the development of the claim, as
completely and quickly as possible in order to bring this
matter to an accurate and efficient resolution. His failure
to provide clarifying information will result in the claim
being denied, or being decided on the basis of the evidence
now of record.
In a July 2004 rating decision, the RO denied claims of
entitlement to TDIU and service connection for hypertension,
impotence, and PTSD. The appellant filed a NOD in August
2004. A SOC was not issued. Thus, the Board is required to
remand these issues to the RO for issuance of a SOC. See
Manlincon v. West, 12 Vet. App. 238 (1999).
The Board observes that additional due process requirements
may be applicable as a result of the enactment of the VCAA
and its implementing regulations. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg.
45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)).
Accordingly, the case is remanded to the VBA AMC for further
action as follows:
1. The VBA AMC will advise the appellant
to submit any and all evidence not
previously submitted as to any VA, non-
VA, or other medical treatment for
asbestosis that is not evidenced by the
current record, to include the
information necessary (address and dates
of treatment) to obtain records from Dr.
K. in Florida. The appellant should be
provided with the necessary
authorizations for the release of any
treatment records not currently on file.
VBA AMC should then attempt to obtain
these records, to include a follow-up
request, and associate them with the
claims folder. All responses thereto
must be associated with the appellant's
claims folder, to include any negative
responses.
2. IF the VBA AMC is unable to obtain
any of the relevant records sought, it
shall notify the appellant that it has
been unable to obtain such records by
identifying the specific records not
obtained, explaining the efforts used to
obtain those records, and describing any
further action to be taken with respect
to the claim. 38 U.S.C. § 5103A(b)(2).
3. The VBA AMC should take such
additional development action as it deems
proper with respect to the claim of
entitlement to service connection for
asbestosis, including the conduct of an
appropriate VA examination, and follow
any applicable regulations and directives
implementing the provisions of the VCAA
as to its notice and development.
Following such development, the VBA AMC
should review and readjudicate the claim.
See 38 C.F.R. § 4.2 (If the findings on
an examination report do not contain
sufficient detail, it is incumbent upon
the rating board to return the report as
inadequate for evaluation purposes.). If
any such action does not resolve the
claim, the RO shall issue the appellant a
Supplemental Statement of the Case.
Thereafter, the case should be returned
to the Board, if in order.
4. The VBA AMC should issue a statement
of the case concerning the issues of
entitlement to TDIU and service
connection for impotence, hypertension,
and PTSD. If, and only if, the
appellant completes his appeal by filing
a timely substantive appeal on the
aforementioned issues should these claims
be returned to the Board. See 38
U.S.C.A. § 7104(a) (West 2002).
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the VBA AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999).
Thereafter, the case should be returned to the Board for
final appellate review, if in order. By this remand, the
Board intimates no opinion as to any final outcome warranted.
These claims must be afforded expeditious treatment by the
Veterans Benefits Administration (VBA) AMC. The law requires
that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims (CAVC)
for additional development or other appropriate action must
be handled in an
expeditious manner. See The Veterans Benefits Act of 2003,
Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to
be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
VITO A. CLEMENTI
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs